Greg Gutman v. Joe Jameson ( 2023 )

AFFIRM; Opinion Filed January 13, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-01005-CV
GREG GUTMAN, Appellant
V.
JOE JAMESON, Appellee
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-20-05078-D
MEMORANDUM OPINION
Before Justices Partida-Kipness, Nowell, and Kennedy
Opinion by Justice Kennedy
Greg Gutman, proceeding pro se, appeals the trial court’s summary judgment
in favor of Joe Jameson. Gutman complains the trial court erred by failing to rule
on his objections to Jameson’s evidence, by considering late-filed arguments and
evidence, and by granting summary judgment in favor of Jameson. We affirm.
Because all dispositive issues are settled in law, we issue this memorandum
opinion. See TEX. R. APP. 47.2((a), 47.4.
BACKGROUND
Jameson and his wife France Jameson were members of a condominium
association. Gutman is an attorney who lived at the same condominium project as
the Jamesons. Jameson contacted Gutman for assistance with a dispute he had with
the condominium association, explaining that machinery under the control of the
condominium association was making loud noises that interfered with his wife’s
sleep and resulted in health concerns related to her lack of sleep. Gutman agreed to
write a letter to the president of the association on behalf of the Jamesons to demand
that the association remedy the noise conditions and compensate the Jamesons in the
amount of $20,000 for their pain and suffering and mental anguish. The president
of the association did not respond to the letter or to Gutman. Ultimately, the
Jamesons discussed the matter with a member of the board, and the machinery was
ultimately repaired to the Jamesons’ satisfaction.
Gutman requested payment from the Jamesons for his time preparing the
demand letter. The Jamesons responded that their understanding was Gutman would
prepare the letter without charge and would be compensated with a share of any
amount the Jamesons received from the association or its insurer. Gutman
disavowed ever agreeing to a percentage of any recovery and continued to demand
payment for the hours he spent preparing the letter. Gutman filed suit against the
Jamesons in the justice court. After the justice court decided in the Jamesons’ favor,
Gutman appealed the case to the county court at law.
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In the county court at law, Gutman asserted claims against Jameson for breach
of contract and quantum meruit.1 Jameson answered with a general denial and
affirmative defenses. Jameson later moved for traditional and no-evidence summary
judgment on Gutman’s claims against him. Gutman filed a response, Jameson filed
a reply, and Gutman filed a sur-reply. After considering the foregoing filings, the
county court at law signed an order granting summary judgment in favor of Jameson
and subsequently filed a first amended order that included the following: “All relief
not expressly granted herein is denied. This is a final judgment that disposes of all
claims and all parties.” Gutman timely filed this appeal.
DISCUSSION
Evidentiary Objections and Late-Filed Arguments and Evidence
In addition to his stated issue challenging the grant of summary judgment in
favor of Jameson, Gutman’s brief raises the following issues:
1) The trial court committed reversible error by failing to rule on evidentiary
objections to Jameson’s summary-judgment evidence.
2) The trial court erred by considering late-filed arguments and evidence in
granting summary judgment.
We first consider whether Gutman preserved his objections to Jameson’s
summary-judgment evidence and conclude that he did not. Because he failed to
1
Gutman’s appeal to the county court at law and his petition filed there named only Joe Jameson, not
his wife France, as a defendant. She is therefore not a party to that action or to this appeal.
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obtain a ruling on any of his evidentiary objections, he failed to preserve this issue
for our review. See Chance v. CitiMortgage, Inc., 395 S.W.3d 311, 315 (Tex.
App.—Dallas 2013, pet. denied) (in summary-judgment context, failure to obtain
ruling in trial court on evidentiary objection waives objection on appeal).
Next, we address his argument the trial court erred by considering late-filed
arguments and evidence in granting the summary judgment. Gutman complains that
Jameson filed a supplemental summary-judgment motion with additional evidence
seven days prior to the submission date of Jameson’s motion for summary judgment.
In his sur-reply, Gutman objected to the timing of Jameson’s reply to his response
to Jameson’s motion for summary judgment.
As Gutman points out, the trial court’s order and amended order granting
summary judgment specifically mention Jameson’s reply was considered, such that
we may presume the trial court considered the evidence attached thereto. See B.C.
v. Steak N Shake Operations, Inc., 598 S.W.3d 256, 261 n.27 (Tex. 2020) (per
curiam) (citing and quoting Stavron v. SureTec Ins. Co., No. 02-19-00125-CV, 2019
WL 6768125, at *6 (Tex. App.—Fort Worth Dec. 12, 2019, no pet.) (mem. op.)
(“The summary judgment order makes clear that the trial court considered, and thus
gave leave to file, the supplemental evidence attached to SureTec’s reply. The order
recites, ‘After considering the Motion, the responses filed by Serafim and Ione
Stavron, and the replies thereto filed by SureTec Insurance Company, the Court
finds that SureTec’s Motion should be GRANTED in its entirety.’”)).
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Rule 166a provides that, “[e]xcept on leave of court, with notice to opposing
counsel, the motion and any supporting affidavits shall be filed and served at least
twenty-one days before the time specified for hearing.” See TEX. R. CIV. P. 166a(c).
As the rule makes clear, the court has discretion to accept a late-filed response
or evidence. Torres v. Lee, No. 05-18-00631-CV, 2020 WL 38832, at *6 (Tex.
App.—Dallas Jan. 3, 2020, no pet.) (mem. op.). A trial court abuses its discretion
when it reaches a decision so arbitrary and unreasonable without reference to any
guiding rules or principles. Jackson v. Motel 6, No. 05-17-00487-CV, 2018 WL
3949535, at *3 (Tex. App.—Dallas Aug. 17, 2018, no pet.) (mem. op.). We construe
Gutman’s argument that the trial court abused its discretion in accepting Jameson’s
late-filed reply and attached evidence, but he cites no authority, and we have found
none, to support such a conclusion. Instead, review of the additional evidence
Jameson filed reveals it was offered largely to rebut Gutman’s allegations in his
response and to respond to his objections to Jameson’s evidence. Accordingly, we
conclude the trial court did not abuse its discretion by considering Jameson’s
response or the attached evidence.
Summary Judgment
We now address Gutman’s stated issue of whether the trial court erred by
granting Jameson’s motion for summary judgment.
We review the granting of a motion for summary judgment de novo.
Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). We must
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determine whether there is more than a scintilla of probative evidence raising
genuine issues of material fact. See TEX. R. CIV. P. 166a(c), (i). We review the
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the movant. See Buck v. Palmer, 381
S.W.3d 525, 527 (Tex. 2012) (citing City of Keller v. Wilson, 168 S.W.3d 802, 824
(Tex. 2005)). Undisputed evidence may be conclusive of the absence of a material
fact issue, but only if reasonable people could not differ in their conclusions as to
that evidence. See id.Jameson filed a traditional and no-evidence motion for summary judgment.
For a traditional summary judgment, Jameson, as the movant, bears the burden to
conclusively establish that he is entitled to judgment as a matter of law,
notwithstanding the nonmovant’s response or lack thereof. See B.C., 598 S.W.3d at
258–59. In contrast, a movant seeking a no-evidence summary judgment need only
identify one or more essential elements of a claim or defense as to which there is no
evidence, and the burden then shifts to the nonmovant to produce summary judgment
evidence raising a genuine issue of material fact. See id. at 259. If a nonmovant
fails to carry this burden, then the court must grant summary judgment. See id.
When presented with combined motions for traditional and no-evidence summary
judgment, we generally address the no-evidence portion first. See id. at 260.
In his second amended petition, Gutman asserted claims against Jameson for
“breach of express, implied or quasi contract” and quantum meruit. To prove a claim
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for breach of contract, a party must establish: (a) a valid contract; (b) the party
performed or tendered performance; (c) the opposing party breached the contract;
and (d) the party was damaged as a result of that breach. Brown v. Ogbolu, 331
S.W.3d 530, 535 (Tex. App.—Dallas 2011, no pet.).
Express Contract on Contingency or Other Basis
In his petition, Gutman’s allegations appear to be that he either formed a
contingency fee contract with Jameson or that he agreed to for some other measure
of fee.2 Jameson’s motion avers Gutman can offer no evidence of a valid oral
contingency fee contract, that Gutman accepted the terms Jameson offered him, or
that he suffered any damages. His motion similarly states there is no evidence of
any valid oral hourly fee contract between himself and Gutman, any offer or
acceptance of such a contract, any breach of same, or damages suffered by Gutman
as a result of the alleged breach.
By statute, a contingent fee contract for legal services must be in writing and
signed by the attorney and client. TEX. GOV’T CODE § 82.065(a). Thus, any
contingency fee contract between Gutman and Jameson must have been made in
writing and signed by both. No such writing is in the record and to the extent
Gutman urges email communications between the parties would satisfy that
2
His petition states that “in consideration of defendant’s promise to pay Plaintiff a fee of $50% of all
personal injury recoveries obtained from the association or its insurer, Plaintiff agreed to pursue
Defendant’s claims . . . .” But, he also alleges that after drafting and sending the demand letter, he
“requested to be paid a modest and reasonable fee for work to date, with no remaining obligations.” Finally,
Gutman’s petition alleges he and Jameson “entered into a contract for the performance of services, with a
fee to be paid at completion.”
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requirement, there is nothing to indicate the parties agreed to conduct their
transaction by electronic means.3 See Celmer v. McGarry, 412 S.W.3d 691, 701
(Tex. App.—Dallas 2013, pet. denied). Therefore, any claim for breach of a
contingency fee agreement fails.
As to a contract for an hourly fee or other noncontingency fee, the record
contains communications between the parties via text message and email, Jameson’s
handwritten notes dated about the time the parties discussed Gutman’s drafting a
letter for the Jamesons, and affidavits from Gutman and both of the Jamesons. In
their communications, Jameson and Gutman both allege the other proposed a
contingency fee arrangement. In his handwritten notes, Jameson indicates Gutman
agreed to draft and send a demand letter at no charge and to later share in any
monetary recovery. In an email dated May 5, 2020, Gutman stated he never asked
for a 50% contingency fee, that he understood Jameson agreed to compensate him
for his efforts, but that they did not specify by what amount Gutman would be
compensated.4 In his declaration supporting his response to Jameson’s motion,
3
To the contrary, in an email addressed to Jameson and dated May 5, 2020, Gutman denied asking for
compensation of 50% of recovery and stated that if he had, he “would have asked [Jameson] to provide me
a written and signed document confirming that arrangement.”
4
Gutman’s email is quoted in part below:
I never asked you to pay me compensation of 50% of recovery. If I was inclined to go that
route, I would have asked you to provide me with a written and signed document
confirming that arrangement. That is what would be required by the disciplinary rules
governing attorney conduct. I did not request such an agreement because I had no intention
to hold you to any such arrangement, even if suggested by you. [D]espite your apparent
cynicism about my motives and actions, my immediate and primary concern was with
protecting you and France from a derelict and irresponsible management here in Preston
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Gutman stated that when Jameson offered to compensate him for all services with
50% of all recoveries on the claim, he agreed at that time but thought privately he
would instead only take a lesser percentage of the recovery. Thus, the record
contains no evidence that there was any agreement between the parties that Gutman
would be compensated for the demand letter he prepared other than with a
percentage of the amount recovered. As noted, there is no express contract between
Jameson and Gutman regarding the drafting of the letter on a contingency fee basis,
and, thus, there is no evidence to support Gutman’s breach of contract claim.
Quantum Meruit
We now turn to Gutman’s claim for recovery under the doctrine of quantum
meruit. To recover under quantum meruit, a claimant must prove that: (1) valuable
services were rendered or materials furnished, (2) to the person sought to be charged,
(3) which services or materials were accepted, used and enjoyed by that person, (4)
under such circumstances as reasonably notified the person sought to be charged that
the plaintiff in performing such services was expecting to be paid by him. Fulgham
v. Fischer, 349 S.W.3d 153, 159 (Tex. App.—Dallas 2011, no pet.).
tower. My financial interest was entirely secondary in my thoughts. Maybe that is difficult
for you to understand, but this is how I think and act. This is NOT the first time I jumped
to help a client, deferring consideration of my compensation until later on. In this instance
you have tried to use my natural inclinations against me.
The following facts have been established in the course of our communications:
1. You requested my help as attorney to you and France. You agreed to compensate me for
my efforts, expressly and implicitly;
2. I undertook the representation, per agreement;
....
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Jameson’s motion for summary judgment challenged only the last element of
Gutman’s quantum meruit claim, urging that there was no evidence that at the time
Jameson accepted the services from Gutman, he was on notice that Gutman expected
him to pay for the drafting of the demand letter. To support his response to
Jameson’s motion, Gutman attached his declaration wherein he stated that Jameson,
“entirely on his own, notified me that he will pay to me as compensation for all
services provided of 50% of all recoveries on the personal injury claim.” The
summary judgment record contains a May 2, 2020 text from Gutman to Jameson in
which he stated that he did not accept Jameson’s offer to “split” whatever recovery
Jameson obtained and instead asked for compensation for what he estimated to be
two hours of work at a rate of $250 per hour. Jameson responded, “We agreed that
you would be compensated by splitting anything [I] received from management or
insurance. . . . I still agree to this.” Two days later, Jameson sent an email to Gutman,
in which he stated his recollection of their initial discussion regarding Gutman’s
services was that Gutman offered to write a demand letter at no fee and to split any
settlement amount equally. Gutman responded to that email, denying he had ever
bargained for 50% recovery and stated that he “proceeded on the assumption that
down the road, if a settlement was reached, we would arrive at a fair estimate of the
value of my work.” Jameson replied that he “offered [Gutman] the insurance split
in return for your offer to write the lawyer letter for me for free.” Jameson’s notes
dated January 15, 2020, the day after Jameson and Gutman’s meeting, indicated he
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met with Gutman and that Gutman agreed to write a demand letter “as a friend; no
charge” and that Gutman agreed to take 50% of whatever settlement was reached.
We conclude the foregoing does not raise an issue of material fact necessary
to satisfy Gutman’s burden as the nonmovant. See B.C., 598 S.W.3d at 259.
Gutman’s declaration that Jameson offered 50% of any recovery for all services and
Jameson’s text that he agreed to compensate Gutman with 50% of any recovery from
the management or insurer does not conflict with the evidence that Jameson offered
to compensate Gutman with 50% of any recovery in exchange for Gutman’s drafting
of the demand letter at no charge. Thus, we conclude there is not a scintilla of
evidence to support the last element of a quantum meruit claim, that Jameson was
on notice at the time Gutman drafted the demand letter that Gutman expected to be
compensated for drafting the demand letter. See Fulgham, 349 S.W.3d at 159.
Accordingly, we overrule Gutman’s issue to the extent he complains the trial court
should not have dismissed his claim for quantum meruit.
CONCLUSION
We affirm the trial court’s judgment.
/Nancy Kennedy/
NANCY KENNEDY
JUSTICE
211005F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GREG GUTMAN, Appellant On Appeal from the County Court at
Law No. 4, Dallas County, Texas
No. 05-21-01005-CV V. Trial Court Cause No. CC-20-05078-
D.
JOE JAMESON, Appellee Opinion delivered by Justice
Kennedy. Justices Partida-Kipness
and Nowell participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee JOE JAMESON recover his costs of this
appeal from appellant GREG GUTMAN.
Judgment entered this 13th day of January 2023.
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